Jharkhand High Court
Dr. Arun Kumar Singh vs Rajendra Institute Of Medical Sciences on 14 May, 2018
Equivalent citations: AIRONLINE 2018 JHA 324
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2091 of 2009
.....
Dr. Arun Kumar Singh, son of Late Rajnath Singh, Professor in the
Department of Skin, V.D. and Leprosy, Rajendra Institute of Medical
Sciences at Bariatu, Ranchi, P.O. & P.S. Bariatu, District Ranchi, at present
residing at Qr. No.4, Doctors Colony, Near Bariatu P.S., P.O. & P.S. Bariatu,
District Ranchi, Pin 834009. .... Petitioner
Versus
1. Rajendra Institute of Medical Sciences, having its College & Hospital at
Bariatu, P.O. & P.S. Bariatu, District Ranchi, Pin 834009, a Statutory Body
constituted by State of Jharkhand represented by its Chief Executive Officer
cum Director, having its office at Rajendra Institute of Medical Sciences at
Bariatu, P.O. & P.S. Bariatu, District Ranchi.
2. Chief Executive Officer cum Director, having its College & Hospital at
Bariatu, P.O. & P.S. Bariatu, District Ranchi, Pin 834009.
3. Secretary, Health, Medical Education & Family Welfare, Government of
Jharkhand, having its office at Nepal House, Doranda, P.O. & P.S. Doranda,
District Ranchi, Pin 834002. ... Respondents
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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : M/s. Saurav Arun & Amit Kr. Sinha, Advocates
For the Respondent-RIMS : Mr. Dr. Ashok Kumar Singh, Advocate
.......
CAV on 18/11/2017 Pronounced on 14/05/2018
Per Pramath Patnaik, J.
In the captioned writ application, the petitioner has interalia prayed for issuance of writ of mandamus commanding upon the respondents for regularization of services on the post of Professor of Skin, V.S. and Leprosy Department of RIMS for the period 01.04.2007 till 31.03.2009 date of attaining the age of 62 years and for a direction upon the respondents for payment of amounts for which the petitioner is legally entitled on and from 01.04.2007 till 31.03.2009 alongwith interest. The petitioner has further prayed for direction imposing heavy cost upon the respondents for not allowing to continue on his post inspite of the fact that the period of superannuation was enhanced from 60 years to 62 years for the Professors of RIMS by a notification adopted by the Governing Body of the RIMS and which has come into effect i.e. on 31.12.2006 the date on which, he was in service.
2. Sans of unnecessary details, the facts as averred in the writ application in a nutshell is that the petitioner was working as the professor-cum-Head of the 2 Department Skin, V.D. and Leprosy Department of Rajendra Institute of Medical Sciences in short referred to as RIMS, continued on the post till attaining the age of superannuation on 31.03.2007. In the meantime, the age of retirement of teachers has been enhanced from 60 to 62 years but the enhancement of the age was not adopted by the Governing Body of the RIMS, therefore, the petitioner handed over the charge to his successor on 05.06.2007. The petitioner submitted representation before the respondent authority to allow him on his post because of the age of retirement enhanced from 60 to 62 years but the said representation did not evoke any response from the respondents. Left with no other alternative remedy, the petitioner was constrained to work under a Contract/agreement at the RIMS for a period of one year as stipulated in the appointment letter dated 21.01.2008 and the petitioner's joining was accepted and he was allowed as Sr. Professor of the Skin, V.D. and Leprosy Department at RIMS. While continuing as such, a notification dated 09.04.2008, whereby the Governing Body of RIMS had resolved that the age of the professors shall be enhanced for retirement from 60 years to 62 years but the said resolution was given retrospective effect i.e. 31.12.2006 on which date, the petitioner was working as a Professor at RIMS and in view of the said notification, the petitioner again made representation before the competent authorities for continuing at his original post till 31.03.2009, the date of which, he would attain the age of superannuation of 62 years but due to adamantine attitude of respondent no.2, the grievance of the petitioner was not redressed. It has further been averred that the petitioner after coming into force of the resolution dated 09.04.2008, is entitled for regularization of his services from 01.04.2007 till 31.03.2009 on which the date, he would complete 62 years. It has further been averred that the petitioner was entitled for enhancement of his post retirement and pensionary benefits, if his services are counted as regular till 31.03.2009. Being aggrieved by the non- redressal of grievance, the petitioner has been compelled to knock the doors of this Court under Article 226 of the Constitution of India.
3. Learned counsel for the petitioner has forcefully submitted that in view of the resolution dated 09.04.2008 of the Governing Body of the RIMS, the petitioner ought to have been allowed to continue till attaining the age of 62 years i.e. 31.03.2009. Learned counsel for the petitioner further submits that in view of aforesaid resolution, the petitioner was entitled for regularisation in 3 services on and from 01.04.2007 to 31.03.2009 and inaction on the part of respondents in not extending the same benefits, amounts to colourable exercise of power. Therefore, the petitioner is also entitled for cost and litigation charges alongwith interest for the harassment by the respondents.
4. Counter-affidavit on behalf of respondent nos. 1 and 2 has been filed controverting the averments made in the writ application. In the counter- affidavit, it has interalia been submitted that while continuing as Professor cum Head of the Department of Skin, V.D. and Leprosy Department, RIMS, the petitioner submitted representation for retirement vide application dated 18.05.2007 vide Annexure-A to the counter-affidavit. Accordingly, the petitioner retired from services which is evident from memo No.4292 dated 20.06.2007 as per Annexure-B to the counter-affidavit. Thereafter, the claim regarding his retiral dues has been processed and same has been paid to the petitioner. Thereafter, the petitioner once again has shown his willingness to work with the respondents and requested for the same vide representation dated 17.01.2008 as evident from Annexure-C to the counter-affidavit and on the request of the petitioner, he had been allowed to work purely on contractual basis for one year with effect from 22.01.2008 vide memo dated 03.03.2008 as evident from Annexure-D to the counter-affidavit and after lapse of the period of contract, the petitioner has been relieved with effect from 21.01.2009 vide memo dated 27.01.2009 as evident from Annexure-E to the counter-affidavit.
5. A supplementary counter-affidavit on behalf of respondent nos.1 and 2 has been filed wherein it has been submitted that provisions of RIMS Act, 2002 has been incorporated and provisions of Rajendra Institute of Medical Sciences Act, 2002 more particular Rule 10 and Rule 14 have been referred to in the counter-affidavit. It has been submitted that after coming into force of RIMS Act, 2002 and rules framed thereunder vide RIMS Act, 2002 the petitioner became a full time employee of RIMS and came under the administrative control and command of RIMS only. After coming into force of RIMS Act, 2002 and the rules framed thereunder any decision with regard to reemployment of the petitioner in the background of an amendment under the provisions of Rule No.14 of RIMS Rules, 2002 could have been taken only by the Governing Body of the RIMS on a representation being filed by the petitioner before the competent authority i.e., Director of RIMS, Ranchi. It has further been submitted that the Secretary, Department of Health, Medical Education and 4 Family Welfare, Govt. of Jharkhand, Ranchi has absolutely no power whatsoever to take any decision with regard to reemployment of any employee of RIMS including the petitioner pursuant to an amendment in the provisions of Rule No.14 of RIMS Rules, 2002. It has further been submitted that in the light of the statutory provisions mentioned above except the Director RIMS, Ranchi who is the Chief Executive Officer of RIMS and the Governing Body of the RIMS no other authority has any role to play in the matter of appointment or reappointment/reemployment or retirement of an employee of RIMS. It has further been submitted that after issuance of resolution dated 09.04.2008 of the State Government, Department of Health, Medical Education and Family Welfare, Govt. of Jharkhand the petitioner gave no representation to the competent authority i.e. Director RIMS, Ranchi to reappoint him as a full time Professor and Head, Department of Skin and V.D., RIMS, Ranchi with effect from the date of his original retirement i.e. 31.03.2007. Therefore, he accepted the fact of his retirement and continued to work on contractual basis without any protest whatsoever. With regard to Annexure-7 and 7/1 of the writ application, it has been submitted that he did not even mark a copy of the representation to State Government to the Director, RIMS, Ranchi or to the Governing Body of the RIMS for any particular action in this regard, therefore, the petitioner is not entitled to any relief, because of the legal maxim that a person who sleeps over his legal rights has no justification to claim the same after inordinate and inexplicable delay in the matter.
6. The counter-affidavit has been filed by respondent no.3 repudiating the contentions made in the writ application. In the counter-affidavit, it has been submitted that the petitioner who took initiative to retire with effect from 31.03.2007, accepted the retiral benefits with effect from 31.03.2007 and proceeded to join on a contractual job of Senior Professor in an Autonomous Institution in RIMS, Ranchi cannot derive any benefit of continuity in service due to Government Circular as per Annexure-6 of the writ application by which the retirement age of teachers was enhanced from 60 years to 62 years from retrospective date.
7. Learned counsel for the respondent-RIMS as well as counsel for the State have vociferously submitted that after retirement of the petitioner from RIMS, the petitioner on his own volition applied to be appointed on contractual basis in view of the Government Circular dated 09.04.2008 as the age of superannuation 5 was enhanced from 60 to 62 years. The petitioner cannot be extended for benefit for continuing on the post till attaining the age of 62 years.
8. After bestowing my anxious consideration to the pleadings of the respective parties and having heard learned counsel for the respective parties at length, this Court is not inclined to accede to the prayer of the petitioner due to the following facts and reasons stated hereinbelow:-
(I) Admittedly, the petitioner retired from the post of Professor on attaining the age of 60 years on 31.03.2007. Thereafter, the petitioner took steps for getting his post retiral benefits. Since, the petitioner was desirous for fresh appointment on contractual basis he applied for the same, which is evident from Annexures-A to E to the counter-affidavit filed by the respondent nos.1 and 2. Therefore, it can safely be concluded that out of his own volition, he accepted the appointment on contractual basis. While continuing on contractual post, there was a Government resolution dated
09.04.2008 issued by the Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand whereby the date of retirement of a teacher in RIMS was raised from 60 to 62 years through an amendment in the provisions of Rule No.14 of RIMS Rules, 2002 with effect from 31.12.2006.
(II) On the date of issuance of the said resolution by the State Government, the petitioner was reemployed on contractual basis on 22.01.2008 and the said period was continued till 21.01.2009. Even after the expiry of the contractual appointment on 21.01.2009, no such representation has been filed by the petitioner to the Director, RIMS, Ranchi or to the Governing Body of RIMS, Ranchi till 31.03.2009 which could have been his effective date of retirement in case of the reemployment on 31.03.2007 in the light of resolution dated 09.04.2008 of the State Government. Since, the petitioner accepted the fact of his retirement on completion of the age of 60 years in view of the un-amended Rule No.14 of RIMS Rules, 2002 and as such the present writ petition has been filed after expiry of enhanced date of retirement. No relief can be extended to the petitioner with regard to his regularization in his services.
6(III) It is a settled principle of law that a person who sleeps over his legal rights has no jurisdiction to stake his claim after inordinate and inexplicable delay in the matter. The maxim is fully applicable in the instant case as the petitioner having opted for contractual appointment is bound by the terms of contract and any payment has to be made in the light of terms and conditions of the contract.
9. In that view of the matter, the petitioner is only entitled for the payment during the contractual period and no such direction can be issued for regularization of his services. Accordingly, the writ petition sans merit is hereby, dismissed.
10. In view of the dismissal of the writ application, I.A. No.5724 of 2017 also stands dismissed.
(Pramath Patnaik, J.) RKM N.A.F.R